Using Trademarks and Copyrights in Movies

Donald Harwood is the founding member of Harwood Reiff, LLC, in New York City. Over the course of his career, he has practiced in various areas of law, ranging from real estate litigation to work in entertainment law for the 2008 film Frozen River. Donald Harwood, who assisted the film with product placement and contract reviews, also served as an executive producer on Frozen River.

Filmmakers, particularly those on a budget, should be aware of the fact that it is not always necessary to contact the owners or manufacturers of trademarked products which appear in their film so long as they are not passed off as a “badge of origin.” This means that characters can film a scene while holding a brand name cup of coffee without requesting permission from the company as long as there is no confusion generated about the maker’s origin. A further warning, however, casting such a product in a negative light could lead to a trademark tarnishment lawsuit.

Using copyrighted work is generally forbidden without the consent of the copyright holder. There are a few instances in which this rule may be broken, such as in the event of incidental use of a copyrighted work. For example, if during a scene an actor passes a building outfitted with a copyrighted work of art, the filmmaker may not need to seek permission. If the scene lingers on the work of art or features the work prominently throughout the scene, the copyright holder may make the case that the use was not incidental.